5:55 PM Court is in session tomorrow at 11 pm ET. There will be rulings. No new business
5:53 PM Look for a post that will be here soon on State Department testimony today.
5:51 PM There are some real soulless creatures on duty at Fort Meade.
5:50 PM Altogether, the witnesses from the State Department that testified helped the defense figure out that there are minutes and agendas from working group meetings, bi-weekly situational reports and persons at risk information memo(s) with a matrix to track individuals that the State Department has in its possession that were put together in response to the crisis created by the leaked cables. The prosecution does not want to turn this over but now that it is known these materials exist they have to do some kind of search under legal criteria to see if anything should be handed over to defense.
5:45 PM State Department witness Catherine Brown, Deputy Assistant Secretary for Intelligence Policy and Coordination (IPC) in the Bureau of Intelligence and Research (INR), testified telephonically. She had personally reviewed the “draft” damage assessment report that the defense recently obtained from the State Department. She edited the “draft” from beginning to end. The draft contained “input from embassies/consulates that came from bureaus” and also contained summaries from the departments that were distillations of submissions from the bureaus.
She said the report had not been updated after August 2011 even though WikiLeaks released all the cables without redactions. “Since that time there has been occasional reporting from our embassies and consulates about issues arising from that disclosure because of all the disclosures.” She also stated, “We will continue to see reporting on damage from WikiLeaks conceivably for many years to come,” in response to multiple questions from Coombs on whether the State Department has another damage report besides the one handed over to the defense.
4:00 PM Court was in recess for hour and a half. Third State Department witness is now about to testify telephonically.
3:57 PM I’ll be on Democracy Now! tomorrow morning to talk about what has happened over the past couple of days here. I expect to focus on State Department witnesses that testified today and the secrecy game that the government and military prosecutors are playing with evidence the defense has been requesting.
3:55 PM In the defense’s argument over the 1030 charges (see below) on “exceeding authorized access,” the defense cited a recent 9th Circuit Court ruling in the case of US v. Nosal. It dealt with the Computer Fraud and Abuse Act. I wrote about the ruling and what its implications might be a couple months ago.
3:50 PM Defense argued that 1030 or the Computer Fraud and Abuse Act (CFAA) is a computer hacking statute and therefore the two 1030 charges against Manning fail to state an offense. Relying on legislative history, Coombs said there are espionage statutes that address the misappropriation of information. He said that the CFAA dealt with those deliberately breaking into computers. Manning did not break into a computer to access documents. Coombs added, “This isn’t the Misappropriation of Information Act.”
The government argued the charges should not be dropped. The defense was misreading legislative history. Plus, the 9th Circuit Court ruling was flawed and should not have influence. There is a split over how to read CFAA in the courts. Fifth and 11th have read differently.
3:19 PM Manning’s defense argues over two 1030 charges that allege he “exceeded authorized access” on his computer when committing the alleged leaks. Here’s the relevant section of the statute:
(1) having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as defined in paragraph y. of section 11 of the Atomic Energy Act of 1954, with reason to believe that such information so obtained could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;
1:15 PM To be clear: The defense had State Department witnesses testify so “discoverable material” could be identified. For example, Coombs asked the witnesses who knew of these working groups what documents or records they might have produced. He found out the WikiLeaks Working Group had produced situation reports. He found out that the mitigation group would have had minutes from meetings or agenda notes. This technically is information the defense has been trying to request, but the government has been unwilling to turn this information over.
12:55 PM Here are some details on the WikiLeaks Persons at Risk group. This is the group at the State Department that would have looked at sources named in the cables and put together reports on who might be harmed by the release of the cables. As described by Rena Bitter, Director of the State Department Operations Center, it was stood up after WikiLeaks working group stood down in December. All regional bureaus and then five other bureaus had members. There were about two representatives from each so about twelve to fifteen people involved.
The group “wanted to identify people who may have been identified as at risk do to reported disclosures and develop ways to help them and in policy to deal with issues on an ongoing basis.” The goal was to identify persons at risk. It did not review all the cables. It asked the chiefs of mission to review and notify the groups. ”The group asked embassies overseas to review their reporting and make a judgement about whether or not to draw those people to” the attention of the WikiLeaks Persons at Risk group.
12:35 PM Defense and prosecution argued lesser included offenses (LIO) motions. What this means is each one lists what they would like to see charged if more severe charges are unproven. Including them means the panel or jury would have this before them when they were deciding how to convict or sentence Manning. If Manning was not found guilty of a charge that carries 10 years, he could be found guilty of one that is 2 years. This is, if one thinks about it, good for the defense in that it gives the jury choices. If jury doesn’t want to give ten because evidence for charge is lacking, it may find there is evidence for lesser charge. They wouldn’t face the need to dismiss a charge and risk serving no time for an alleged crime. They could give him two and still have him held responsible. This is what the defense is thinking and then, likewise, the prosecution has included LIOs to ensure Manning does time if they do not prove evidence for more severe charges.
12:30 PM Via Clark Stoeckley (WikiLeaks Truck driver), who is here drawing courtroom sketches:
12:20 PM The prosecution initially objected to the cross-examination of Coffey. They said she was only here to testify on mitigation and the documents from the group. Fein said she was not in a position to talk about other State Department broadly. The judge asked, “What prejudice is there for the government if I allow this to continue?” She did overruled the objection and let Coombs proceed.
12:00 PM Two State Department witnesses testified at opening of the proceedings today. One was Marguerite Coffey, former director of the Office of Management, Policy, Right Sizing and Information Policy. She head of the mitigation group formed to respond to the release of WikiLeaks cables. The other was Rena Bitter, who is the Director of the State Department Operations Center, which handles responses to crises.
There were multiple groups setup to respond to the leaked cables. The chiefs of mission review group was tasked with having embassies and consulates report on risks in the aftermath. The mitigation group was setup to look at deficiencies in information management. There was a WikiLeaks Persons at Risk group that Bitter said was setup to ”stay ahead of the release of information of reported cables and try to make sure that we could understand what was public” and be aware of what needed a response. And there was a main WikiLeaks working group setup on November 28 that operated 24/7 until December 17 that put out situation reports twice a day and helped with the larger departmental response to the leaked cables.
9:10 AM Courtroom security wondered during lunch yesterday if Bradley Manning supporters have jobs.
9:00 AM Here is a report on yesterday’s proceedings that I wrote up: “How Could Law Enforcement Files Against Bradley Manning Not Be Relevant?”
8:50 AM The defense will be calling three State Department witnesses. They will be asking the questions. The burden will be on them to get the witnesses to give them what they want. They are being called to force the government to turn over evidence.
8:45 AM These are my television appearances from yesterday: